United States v. Gomez-Reyes

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 21, 2006 Charles R. Fulbruge III Clerk No. 05-41470 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JUAN GOMEZ-REYES, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:05-CR-388-ALL -------------------- Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:* Juan Gomez-Reyes (Gomez) pleaded guilty to being found unlawfully in the United States following deportation and was sentenced to a 46-month term of imprisonment and to a two-year period of supervised release. Gomez has appealed his conviction and sentence and contends that the felony and aggravated felony provisions of 8 U.S.C. § 1326(b) are unconstitutional on their face and as applied to him. Gomez’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

No. 05-41470 -2- (1998). Although Gomez contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres, we have repeatedly rejected such arguments on the basis that Almendarez-Torres remains binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Gomez properly concedes that his argument is foreclosed in light of Almendarez-Torres and circuit precedent, but he raises it here to preserve it for further review.

AFFIRMED.